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Constitutional Rights and Constitutional Review
Robert Alexy
I. The Problem of Constitutional Review
The question of how the legal power of a constitutional court to overturn acts of parliament can be justified is the central theoretical issue in the field of constitutional review. This issue addresses the perennial problem of the relation between constitutional review and democracy.
Hans Kelsen treats the question of constitutional review as a question of the legality of legislation. The parliament is empowered by the constitution qua higher law to enact statutes, and if these laws are not issued in accordance with the procedural rules of the constitution or do not comport with substantive constitutional constraints, in particular, constitutional rights, then these purported laws are unlawful.[1] In this situation constitutional review is said to be indispensible in order to secure ‘complete legal bindingness’ (volle Rechtsverbindlichkeit),[2] required by the ‘principle of the greatest legality possible’ (Prinzip möglichster Rechtsmäßigkeit).[3] This picture of constitutional review is correct but incomplete. It says nothing about how the unconstitutionality of a parliamentary law enactment is established. This is a serious problem, for in many cases the question of constitutionality will be contested. In these situations two questions arise: a methodological or argumentation-theoretic question and an institutional question. The methodological question is whether, in cases of disagreement, it makes sense to attempt to find the better answer – an answer that is better, for instance, than an answer arrived at by tossing a coin. The institutional question is whether it is compatible with democracy that a constitutional court be empowered to attempt to find this answer. My reflections on these questions will refer to constitutional rights, a field in which the problems of constitutional review are posed with special urgency. I will proceed in two steps. In a first step I will present principles theory as a model of constitutional argument. The second step will concern the idea of constitutional review as ‘argumentative representation’ of the people. My thesis is that constitutional review is justified on the basis of principles theory on the one hand and on the basis of the theory of argumentative representation on the other.
II. Principles Theory
1. Rules and Principles
The norm-theoretic basis of principles theory is the distinction between rules and principles. Rules are norms that require something definitively. They are definitive commands. Their form of application is subsumption. By contrast, principles are norms requiring that something be realized to the greatest extent possible, given the factual and legal possibilities at hand. Thus, principles are optimization requirements.[4] Their form of application is balancing. This norm-theoretic distinction is connected with the interpretation of constitutional rights by way of the thesis that constitutional rights have essentially the character of principles.[5] This does not mean, however, that provisions giving expression to constitutional rights cannot also express rules or elements of rules. An example of a constitutional rights rule in the German Constitution is Article 102 of the Basic Law, which says: ‘The death penalty is abolished’. Another example of a decision taken by the constitutional framers that has the character of a rule is Article 104 (2) (3) of the Basic Law, which runs as follows: ‘The police are not permitted to hold anyone arrested on their own authority beyond the end of the day after the arrest’. Still another example stems from the details of the highly complex regulation on the adoption of technical means for the acoustic surveillance of an accommodation in which the suspect is thought to reside, found in Article 13 (3)-(6) of the Basic Law. In these cases, the constitutional framers have passed on questions of balancing by establishing rules, and the interpreter of the Constitution is bound to apply them.[6] There exist, however, a great many cases in which an authoritative decision taken by the constitutional framers to decide the case is not at hand. Here, the balancing of principles is indispensible. This is also the case where a constitutional court transcends the wording of the constitution, as, for instance, the German Federal Constitutional Court did when, in a decision from 9 February 2010, it created a social right to an existential minimum.[7]
2. Principles Character and ProportionalityAnalysis
The definition of principles as optimization requirements leads straightaway to a necessary connection between principles and proportionality. The principle of proportionality (Verhältnismäßigkeitsgrundsatz), which in the last decades has received ever greater international recognition in the theory and practice of constitutional review,[8] consists of three sub-principles: the principles of suitability, of necessity, and of proportionality in the narrower sense. All three sub-principles express the idea of optimization. Principles qua optimization requirements require optimization relative both to what is factually possible and to what is legally possible. The principles of suitability and necessity refer to optimization relative to the factual possibilities. Optimization relative to the factual possibilities concerns the question of whether one position can be improved without detriment to the other. Thus, the first two sub-principles require Pareto-optimality.
Optimization relative to the factual possibilities consists in avoiding avoidable costs. Cost, however, are unavoidable when principles collide. Balancing then becomes necessary. Balancing is the subject of the third sub-principle of the principle of proportionality, the principle of proportionality in the narrower sense. This principle expresses what optimization relative to the legal possibilities means. This rule can be called ‘Law of Balancing’.[9] It states:
The greater the degree of non-satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the other.
3. Law of Balancing
The Law of Balancing shows that balancing can be broken down into three stages. The first stage involves establishing the degree of non-satisfaction of, or detriment to, the first principle. This is followed by a second stage in which the importance of satisfying the competing principle is established. Finally, in a third stage, it is determined whether the importance of satisfying the latter principle justifies the detriment to or non-satisfaction of the former. This shows that balancing presupposes that it is possible to make rational judgments about, first, the intensity of interference, second, the degree of importance, and, third, their relation to each other.
Critics of balancing like Jürgen Habermas and Bernhard Schlink contest the rationality of such judgments.[10] The question of whether balancing is a form of rational argumentation cannot be discussed here in any detail.[11] I will confine myself to a brief look at two cases illustrating that and how rational judgments about intensity of interference, degree of importance, and their relation to each other are possible. A rather simple case is the decision of the German Federal Constitutional Court on health warnings.[12] The Court characterizes the duty of tobacco producers to place health warnings respecting the dangers of smoking on their products as a relatively minor or light interference with the freedom to pursue one’s profession. By contrast, a total ban on all tobacco products would count as serious interference. Between such minor and serious cases, others of moderate intensity of interference can be found. In this way, a scale can be developed with the stages ‘light’, ‘moderate’, and ‘serious’. Our example shows that valid assignments following the scale are possible. The same is possible on the side of the competing reasons. The health risks resulting from smoking are great. Therefore, the reasons justifying the interference weigh heavily. If in this way the intensity of interference is established as minor, and the degree of importance of the reasons for the interference as high, then the outcome of examining proportionality in the narrower sense may well be described – as the German Federal Constitutional Court has in fact described it – as ‘obvious’.[13]
The teachings of the tobacco judgment are corroborated by looking to other cases. A far more difficult case is presented by the decision of the Federal Constitutional Court on electronic data screening. A student with Moroccan citizenship and islamic faith brought a constitutional complaint against an order of the lower district court in Düsseldorf – upheld in the higher courts – that required residents’ registration offices, the central aliens’ registry, and universities to transmit data concerning male persons between 18 and 40 on, inter alia, their faith, native country, citizenship, and subject of study. These data were transmitted to automatic data processing for the purpose of identifying potential terrorists. The measure was held to be justified in light of the general danger of terrorism attempts after September 11.[14] The majority of the First Panel of the Federal Constitutional Court classified the measure as an interference of ‘considerable weight’[15] with the complainant’s right to data self-determination, which – according to the Court – is a special case of the general right to personality (Art. 2 (1) in connection with Article 1 (1) of the Basic Law). The Court considers such a serious interference as justified in cases of a present danger[16] and also in cases of a concrete danger, but not in cases of an abstract or general danger.[17] Now, our case is said to be merely a case of abstract danger,[18] characterized by a ‘generally threatening situation’.[19] This implies that the interference with the right of the complainant is unconstitutional. The reason for this – not very clearly elaborated in the decision, which is focused on the interference with the right and not on the reasons for this interference – is that in cases of abstract danger, the reasons for interference have only a moderate weight or at any rate a less serious[20] weight than the interference with the complainant’s right. Therefore, the constitutional complaint was considered to be justified.
If one follows the classifications of the majority, the result is inevitable. The dissenting vote of Justice Haas, however, shows that different classifications or gradings are conceivable. According to Haas, the interference with the complainant’s right has only a ‘low weight’,[21] whereas the guarantee of security is of great importance. These classifications imply that the constitutional complaint is not justified. Here only two points are of interest. The first is that both sides presented numerous arguments for their classifications. The arguments of the majority for the assessment of the interference as serious run over eleven pages,[22] those of Justice Haas for her assessment as light run over four pages.[23] This illustrates that balancing is not simply a matter of classification, grading or rating, but essentially a matter of argumentation. The second point is that the arguments can not only lead, as in the tobacco case, to an agreement, but also to disagreement. The question is what this means for the justification of constitutional review.
4. Discretion
It would be possible to engage in a far deeper and more precise analysis of the two cases by means of the Weight Formula,[24] which is nothing other than a mathematical reconstruction of the Law of Balancing together with its link to a second Law of Balancing that refers to epistemic certainty.[25] This, however, shall not be elaborated here. A sole point is of interest in the present context. It is the fact that the theory of balancing, as based on principles theory, is intrinsically bound up with a theory of discretion or deference. Two kinds of discretion are to be distinguished: structural and epistemic discretion.
The most important kind of structural discretion is discretion in balancing.[26] Balancing presupposes, as the two cases illustrate, scales.[27] In constitutional law only crude discrete scales are possible. The triadic scale, namely light, moderate, and serious, is an example. There are numerous possibilities for refining the scale. A double-triadic scale is of special interest. It works with nine steps or values that begin with light light, that is, very light, continue with moderate light, and terminate with serious serious, that is, very serious. It is of the utmost importance that the possibilities of refinement be limited. All classifications represent judgments, and they are, as the two cases illustrate, in need of justification. A justification can only be given for what one understands. Now it is easy enough to understand a statement such as ‘The interference is light’ or a statement such as ‘The interference is a serious moderate interference’. But how should the statement ‘The interference is a serious light interference of a moderate kind’ be understood?[28] For this reason, the scale cannot be an infinitesimal or continuous scale. It has to be crude and discrete. The cruder the scale, the more frequent the cases of stalemate, that is, if a triadic scale is used, the frequency of cases in which on both sides a ‘light’, a ‘moderate’, or a ‘serious’ may be found. In such cases of stalemate, the parliament, from the point of view of the constitution, is free to decide as it wishes.
Epistemic discretion is no less important. It occurs in cases of empirical and normative uncertainty. In such cases the formal principle of the decision-making competence of the legislature can justify an exercise of discretion by the legislature.[29]
The existence of these two kinds of discretion shows that the reasoning of a constitutional court is different from what takes place in the parliament. The majority in parliament cannot issue a law that says no more than that it is possible to decide both for and against a certain regulation. A constitutional court can make such a decision, and it in effect has to do so in all cases of discretion. This implies that constitutional review is confined to controlling the limits of the competence of the legislature. This is an important point where the principle of democracy is concerned. It reduces the intensity with which constitutional review interferes with the principle of democracy.
III. Constitutional Rights, Human Rights, and Representation
The concession represented by discretion or deference serves to mitigate the harshness of the problem posed by the democratic legitimacy of constitutional review. This concession does not, however, by itself place one in a position to resolve the problem, for it leaves open the institutional question of who ought to determine the limits of legislative competence. In cases of collision between constitutional rights as well as between constitutional rights and collective goods, this problem can only be resolved by means of balancing. One might call the limits established by balancing ‘balancing limits’. A balancing limit is transgressed by the legislature when the interference of a certain regulation with a constitutional right has greater weight than do the reasons justifying it. A parliament issuing this regulationwill, however, regularly claim that the regulation is constitutional, which implies that it is proportional, and which implies, too, that the reasons justifying the interference have at least as much weight as the interference. A critic of constitutional review who accepts the thesis that balancing is a form of rational argumentation may nevertheless ask, in such cases, why the assessments of the constitutional court ought to take priority over the assessments of the legislature. The answer to this question stems from the connection of three arguments: a formal, a substantive, and a procedural argument.
1. Control or No Control?
The formal argument consists of the classical maxim nemo iudex in sua causa.[30] Jeremy Waldron has argued that it ‘is hard to see the force of this argument’.[31] There must always be ‘some person or institution whose decision is final’,[32] and the person or institution having the last word is ‘ipso facto ruling on the acceptability of [his or its] own view’.[33] One has to agree with Waldron on the point that the final instance cannot be controlled by a further instance, for if this were the case, the final instance would not be final. But the problem of the final instance has to be distinguished from the problem of control. If there is no constitutional review, there is no control of the legislature with respect to the question of whether – in following its own assessments of the requirements of constitutional rights – it has violated these rights. That there exists no institutionalized control of the controlling instance is a separate point. The fact that the final instance is not controlled does not imply that it cannot control non-final instances. One is left, then, with the question of whether control by an instance that is not itself controlled is to be preferred to no control at all. I think constitutional rights fare better if we follow the first option. But why should they be better protected? This question leads to the second argument, the substantive argument.
2. Constitutional Rights and Human Rights
The substantive argument is based on the importance of constitutional rights. The importance of constitutional rights stems from the fact that constitutional rights are rights that have been recorded in a constitution with the – subjective or objective[34] – intention of transforming human rights into positive law, in other words, the intention of positivizing human rights qua moral rights.[35] Moral rights are rights that are valid exclusively by reason of their correctness. In this sense, they are ideal rights. For this reason, constitutional rights as attempts to positivize human rights have a dual nature. As positive rights they have a real or institutional dimension. But the ideal and critical dimension of moral rights qua supra-positive rights lives on, notwithstanding their positivization. This has the consequence that the justification of constitutional review is not limited, as Kelsen would have us believe, to an appeal to the hierarchical structure of positive law. Over and above this, the justification of constitutional review can also be based on moral reasons. Now human rights qua moral rights include a right to be protected, and this right to protection is not eliminated by their positivization. On the contrary, their positivization has to be conceived as an attempt to strengthen human rights qua moral rights. To renounce constitutional review would be to break off, rather than to strengthen, the right of protection.
An argument based on the principles character of constitutional rights, which, again, can be supported by the human rights argument,[36] has to be added to this. Constitutional rights qua principles require optimization. In cases in which the parliament answers the question of their violation in the negative, they enjoy greater protection if there exists a constitutional court that has competence to answer this question in the affirmative.[37] This greater protection is required by the principle of the protection of constitutional rights, which is a meta-principle with respect to different principles represented by constitutional rights. This meta-principle connects the formal and substantive arguments.